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DEFEXCE  ,  c^u^^^c 

OF  A  J   ' 

LIBERAL    CONSTRUCTION     l4-^^o3 

OF    THE  fS/j     i      J? 

POWERS  OF  CONGRESS, 
AS  REGARDS  IJVTERJVAL.  IMPROVEMENT,  ETC. 

WITH  A    COMPLETE    REFUTATION    OF    THE    ULTRA    DOCTRINES   RESPECTING    CON- 
SOLIDATION   AND    STATE  SOVEREIGNTY. 


WRITTEN  BY  GEORGE  MCDUFFIE,  ESQ.     f\^ 

IN  THE  YEAR  1821.  It       \  A^ 

Over  the  Signature  of''^  One  of  the  People.''   -^      O  jU 

TO  WHICH  ARE  PREFIXED  V^       }j^ 

AST    EigrCOlMEIASTZO     ADVERTISEiyCEN'A 

OF  THE  WORK. 

BY  MAJOR    (NOW  GOVERNOR)  HAMILTON, 

AND    A  PREFACE    BY  THE    EDITOR. 


*•  Ambitious  mex  of  inferioh  talents,  finding  thkt  have  no  hope  to  be  dis- 
*•  tinfiuished  in  the  councils  of  the  national  government,  naturally  wish  to 
•*  increase  the  power  and  conseq.uence  of  the  state  governments,  the  theatres 
**iN  WHICH  THET  EXPECT  TO  AcauiRE  DISTINCTION.  It  is  Hot,  therefore^  a  regard  for  the 
*'  rights  of  the  people^  and  a  real  apprehension  that  those  rights  are  in  danger,  that  have 
*«  caused  so  much  to  be  said  on  the  subject  of  prostrate  state  sovereignties  and  consolidated  em- 
**pire.  It  is  the  ambition  of  that  class  of  politicians,  who  expect  to  figure  only  in  the  state 
'  *  councils,  and  of  those  states  who  are  too  proud  to  acknowledge  any  superior.'* 

One  of  the  People. 

"/  will  endeavour  to  show,  from  our  actual  experience,  that  we  have  aiore  cause  of  ap- 

*'  PREHENSION  FROM  THE  STATES,  THAN  FROM  THE  GENERAL  GOVERNMENT;  OR,  IN  OTHER 
*•  WORDS,  THAT  THERE  IS  IN  OUR  SYSTEM  A  GREATER  TENDENCY  TO  DISUNION  THAN  TO 
**  CONSOLIDATION."— 7cfe/n. 

*•  He  MUST  HAVE  READ  THE  LESSONS  OF  HISTORY  TO  LITTLE  PURPOSE,  WHO  DOES  NOT 
'*  PERCEIVE  THAT  THE  PEOPLE  OF  PARTICULAR  STATES  ARE  LIABLE  TO  FALL,  OCCASIONALLY, 
**  INTO  A  DANGEROUS  AND  MORBID  EXCITEMENT  UPON  PARTICULAR  SUBJECTS  ;  AND  THAT 
**  UNDER  THIS  EXCITEMENT,  THEY  WILL  IMPEL  THEIR  RULERS  INTO  THE  ADOPTION  OP  MEA- 
**8UBES  IN  THEIR  TENDENCY  DESTRUCTIVE  TO    THE  UnION." Idem. 

**  If,  after  the  National  Judiciary  have  solemnly  affirmed  the  constitutionality  of  a  law,  it 
**  is  still  to  be  resisted  by  the  state  rulers,  the  constitution  is  literally  at  an  end ;  a  revolution 
*^  of  the  government  is  already  accomplished ,-  and  aruirchy  waves  his  horrid  sceptre  over  the 
*•  broken  altars  of  this  happy  Union.'" — Idem. 


PHILJiBELPHIA: 


PRINTED    BY    L.YDIA    R.    BAILEY, 

NO.    26,    NORTH    FIFTH    STREET. 

November  2\si,    1831. 

M  the  subjects  discussed  in  this  pamphlet  are  of  the  most  absorbing  interest,  involving  no 
less  than  the  permanence  of  our  happy  form  of  government,  it  will  be  sold,  in  order  to  insure 
a  general  circulation,  at  the  mere  cost  of  paper  and  printing,  that  is,  at  three  dollars  per 
hundred,  and  at  the  same  rate  for  any  quantity  not  less  than  twenty. 

41 5 


GIFT 


STATE  RIGHTS— USURPATION— CONSOLIDATION,  &c- 


*^  Ambitious  men,  of  inferior  talents,  finding  they  have  no  hone  to  be  distinguished  in  the 
cmncils  of  the  general  governmenty  naturally  wish  to  increase  the  power  and  consequence  of 
(he  state  governments,  the  theatres  in  which  they  expect  to  acquire  distinction.  It  is  not,  there- 
fore, a  regard  for  tlie  rights  of  the  people,  and  a  real  apprehension  that  those  riglUs  are 
in  danger,  that  have  caused  so  much  to  be  said  on  the  subject  of  prostrate  state  sove- 
reignties, and  consohdated  empire."— One  o/ Me  Pcop/e.     By  George  MWuffie,  Esq. 


The  United  States  exhibit  at  present,  a  most  extraordinary  spectacle 
to  the  world.  We  are  stunned  with  the  most  impassioned  declamations 
in  favour  of  **state  rights" — and  the  danger  they  are  in  from  the  usur- 
pations, and  ambition,  and  despotic  views  of  the  general  government, 
which  is  preparing  to  devour  them,  and  labouring  to  produce  the  so- 
styled,  most  abominable  of  all  governments,  consolidation,  whereby 
the  lives,  liberties,  and  property,  of  all  our  citizens,  from  Maine  ta 
Florida,  will  be  inevitably  annihilated.  To  guard  against  this  conglo- 
meration of  evils,  preparations  are  making  ^^  to  renew'*^  the  bloody 
^^ scenes  of  the  revolutionary  war.^^ 

A  spectator  remote  from  the  fervid  atmosphere  of  South  Carolina^ 
who  could  view  the  state  of  the  country  with  the  calm  eye  of  a  dispas- 
sionate philosopher,  would  pronounce  that  this  alarming  prospect  was 
not  only  without  foundation,  but  that  the  dangers  of  the  nation  were  in 
a  totally  opposite  direction.  *'The  lion'^  of  the  United  States  govern- 
ment '*  is  bearded  in  his  den" — and  by  second  or  third  rate  members 
of  the  confederacy.  He  would  pronounce,  with  Mr.  M'Duffie,  [see 
postea  13]  that  ^' we  have  more  cause  of  apprehension  from  the  states 
than  from  the  general  government,  or,  in  other  words,  that  there  is 
in  our  system,  a  greater  tendency  to  disunion  than  to  consolida- 
tion.^^ Treaties  entered  into  with  all  the  solemn  sanctions  that  bind 
civilized  nations,  are  set  aside  without  consulting  either  of  the  high 
contracting  parties — and  the  dreaded  monster,  the  United  States,  ia 
powerless  to  enforce  the  observance  of  them,  or  to  protect  the  suffer- 
ing party.  Maine  appears  disposed  to  be  somewhat  troublesome,  about 
the  decision  of  the  boundary  line.  None  of  us  has  forgotten  the  diffi- 
culties the  United  States'  government  experienced  during  the  late  waf, 
from  the  seditious  opposition  of  individual  states.  To  crown  the  whole, 
South  Carolina,  with  a  population  of  280,000  white  inhabitants,  and 
260,000  slaves,  appears,  so  far  as  can  be  collected  from  the  proceedings 
of  the  nuUifiers,  to  be  preparing  to  annul,  and  it  appears  from  the  opera- 
tions of  her  executive,  that  he  is  preparing,  vi  et  armis,  to  resist  the 
operation  of,  laws  enacted  in  due  form  by  the  entire  confederacy  of 
twenty-four  states. 

To  render  this  procedure  more  ludicrous,  it  appears  that  but  a  bare 
majority,  say  145,000,  or  150,000,  out  of  the  280,000,  are  prepared  for 
A 


^  PREFATORY    OBSERVATIONS. 

those  outrageous  measures.  The  residue  of  the  population  is  decidedly 
opposed  to  them.  Thus,  suppose  the  adult  males  are  about  one-fourth 
of  the  whole  population,  it  appears  that  less  than  40,000  white  males, 
are  about  to  nullify,  or  abrogate  the  solemn  acts  of  that  ^' raw-head-and- 
bloody-bones,'Mhe  Federal  government!!  And,  mirahile  dictu,2>\ 
these  disorganizing  proceedings  take  place  in  the  midst  of  a  clamour 
against  the  usurpations  of  Congress  ! 

The  man  who  can,  without  deep  anxiety,  behold  this  awful  state  of 
things — the  rumblings  of  this  fierce  earthquake,  which  is  being  prepar- 
ed to  swallow  up  the  hopes  entertained  of  the  triumphant  success  of  our 
governmental  experiment,  by  the  wise  and  the  good,  not  merely  in  this 
country,  but  in  Europe,  is  unworthy  of  the  name  of  freeman,  or  the 
enjoyment  of  the  blessings  of  liberty.  He  ought  to  live  and  die  in  an 
eastern  despotism.  What  may  be  the  result,  is  in  the  womb  of  time. 
If  the  nullifying  citizens  succeed  in  their  projects,  they  will  necessarily 
lead  to  a  severance  of  the  Union — and  it  would  betray  gross  ignorance 
of  human  nature  and  of  history,  to  expect  that  we  should,  in  that  case, 
long  escape  a  border  or  civil  war.  "  The  day,  the  awful  day,  big,  with 
the  fate'^  of  republican  government,  that  dissolves  the  Union,  will  be 
a  day  of  solemn  jubilee  to  the  despots  and  tyrants  of  the  Old  World,, 
and  of  sackcloth  and  ashes  to  the  friends  of  the  human  race. 

The  most  zealous,  ardent,  and  influential  advocates  of  the  ultra  doc- 
trines of  state  rights,  are  Governor  Hamilton  and  Mr.  M'DuJffie.  How 
many  years  have  elapsed  since  they  commenced  the  crusade  in  defence 
of  those  doctrines  I  know  not — probably  five  or  six.  Be  this  as  it  may, 
it  is  only  ten  years  since  [in  1821]  both  these  gentlemen  were  among, 
the  most  ardent  opposers  of  the  doctrines  they  now  uphold  so  zealously! 
How  long  after  1821,  it  was  before  they  changed  their  sentiments,  I 
am  ignorant.  But.one  thing  is  highly  probable,  their  conversion  has 
been  very  recent  and  very  sudden. 

Fortunately  for  the  nation,  in  regard  to  this  ''vexed  question,'^  their 
formerly-cherished,  but  now  repudiated  opinions,  are  on  record.  The 
change  in  the  views  of  the  authors,  works  no  change  in  the  opinions. 
If  they  were  then  true,  as  they  appear  to  be,  they  will  be  eternally  true, 
not  merely  at  present,  but  through  the  vast  range  of  distant  ages. 

Mr.  M'Duffie,  in  a  pamphlet  signed  ''One  of  the  People,"  now  be- 
fore me,  entered  into  full  detail,  on  this  mighty  subject,  and  in  a  man- 
ner that  reflects  credit  on  his  head  and  heart.  Many  of  his  views  are 
so  profound,  and  display  such  consummate  knowledge  of  the  sinister 
workings  of  the  human  passions,  and  their  fell  operation  as  displayed 
in  the  foul  and  ensanguined  pages  of  history,  that  they  are  worthy  to 
be  placed  along  side  some  of  the  luminous  reflections  of  Tacitus,  which 
have  been  the  admiration  of  the  world  for  sixteen  centuries.  Nevei? 
was  a  case  more  fully  made  out  than  he  has  made  out  his  case  of  the 
causes  that  produced  the  disaffection,  and  the  alarm  about  tlie  danger  of 
"state  rights,"  that  prevailed  in  1821.  A  single  page  is  abundantly  suf- 
ficient to  settle  the  question,  and  to  trace  the  insurrectionary  movements 
to  which  he  referred,  to  "  the  ambition  of  men  of  inferior  talentSy^ 
who"  wished  to  increase  the  power  and  consequence  of  the  state  go- 
vernments," for  their  personal  aggrandizement. 


PREFATORY    OBSERVATIONS. 


I  have  thought  that  I  could  not  employ  a  few  hours  more  advan- 
tageously to  the  citizens  of  this  rising  empire,  than  in  making  ex- 
tracts of  the  leading  topics  of  Mr.  M'Duffie's  Essay,  in  order  that  they 
may  be  compared  with  the  doctrines  he  holds  at  present.  It  will  then 
be  easy  to  discover  whether  the  spectre  which  he  laid  in  the  **  vasty 
deep,"  in  1821,  and  which  he  has  recently  conjured  up  anew,  to  terrify 
the  nation,  be  a  creature  of  the  imagination,  or  in  reality  a  *'  monsirum 
horrendum,  ingens,  informey"  against  which  we  ought  all  to  sally 
forth  armed  cap  4  pie,  in  defence  of  state  rights,  and  in  deadly  hosti- 
lity to  consolidation. 

The  introductory  advertisement,  written  by  James  Hamilton,  Esq. 
(the  present  Governor  of  South  Carolina,)  sufficiently  explains  the  cir- 
cumstances, which,  happily  for  the  nation,  gave  rise  to  this  luminous' 
defence  of  the  noblest  institutions  that  ever  the  sun  shone  on. 

I  am  well  aware  of  the  hostility  and  obloquy  that  this  publication  is 
likely  to  call  forth.  To  be  ignorant  of  this  result,  would  argue  that  I 
had  lived  a  very  long  life,  quoad  hoc,  to  little  purpose.  Before  I  enter- 
ed the  lists,  I  had  *' counted  the  costs,"  and  prepared  myself  for  the 
consequences.  Whatever  may  be  the  result,  I  could  never  engage  in  a 
more  glorious  cause  than  the  defence  of  the  welfare  and  happiness  of 
thirteen  millions  of  people  and  their  posterity. 

HAMILTON. 

Philadelphia,  Nov.  14,  1831. 

P.  S.  When  Governor  Hamilton  was,  some  months  since,  reproach- 
ed with  the  great  inconsistency  of  his  conduct  on  this  subject,  he  pleaded 
his  youth  and  inexperience,  in  1821.  Governor  Hamilton  was,  at  that 
period,  if  am  rightly  informed,  about  thirty-five  years  of  age.  On  this 
defence  I  might  make  large  comments — but  I  forbear.  Let  the  justifi- 
cation pass  for  what  it  is  worth. 

A  few  words  by  waj'-  of  N.  B.  By  this  publication  it  appears  that, 
Governor  Ss^fer  and  Mr.  M'Duffie,  have  changed  their  opinions  on"^ 
this  all-important  subject  of  state  rights,  liberal  construction  of  the  con- 
stitution, consolidation,  &c.  &c.  It  further  appears,  by  a  recent  publi- 
cation, that  Mr.  Calhoun  and  Judge  Cooper,  have  likewise  changed 
opinions,  on  the  subject  of  the  tariff,  and  Mr.  Calhoun  on  that  of  in- 
ternal improvement.  These  four  gentlemen  are  among  the  leaders  of 
the  nullifiers  in  South  Carolina.  How  far  gentlemen,  whose  opinions  are 
so  liable  to  change,  and  to  take  a  direction  diametrically  opposite,  can  be 
safe  guides,  deserves  the  most  serious  consideration.  Three  of  them, 
at  least,  cannot  plead  youth  to  justify  the  errors  of  their  early  heresies, 
if  heresies  they  were. 


Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress^ 


DEFENCE  OF  A  LIBERAL  CONSTRUCTION  OF  THE  POWERS  OF  CONGRESS. 
WRITTEN  BY  G.  M'DUFFIE,  ESQ.   JULY,  182L 

*•  We  have  more  cause  of  apprehension  from  the  states  than  from  the  general  govern- 
ment— or  in  other  words,  there  is  in  our  system  a  greater  tendency  to  disunion,  than  to 
consolidation." — One  of  the  People- 


Extracts  from  an  Essay,  entitled  <<  National  and  State  Rights  con- 
sidered.^^ By  the  Hon.  George  M'Duffie,  under  the  signature  of 
^'  One  of  the  People.''  In  reply  to  the  "  Trio;''  to  ivhich  are  pre- 
fixed extracts  from  the  prefatory  advertisement,  which  accompanied 
its  republication.     By  Major  James  Hamilton. 


ADVERTISEMEJTT, 

In  preserving  the  subjoined  Essays  from  the  fugitive  columns  of  a 
newspaper,  and  in  placing  them  in  a  form  more  permanent  and  endur- 
ing, we  conceive  we  are  paying  no  more  than  a  just  homage  to  the 
sacred  principles  they  inculcate,  and  to  the  genius  which  has  given 
them  an  illustration  so  powerful  and  impressive. 

It  may  be  not  altogether  unnecessary  to  acquaint  the  reader  with  the 
causes,  which  led  originally  to  the  publication  of  the  Letters  of  ''One 
jof  the  People." 

In  July  last,  a  series  of  Numbers,  entitled  the  ^'Prospect  before  us, 
as  seen  through  the  Signs  of  the  Times,  by  the  Trio,"  made  their 
appearance  in  a  Milledgeville  Gazette. 

The  ostensible  scope  of  these  dissertations  was,  to  show  that  the  pre- 
sent administration  is  conducted  on  principles  altogether  subversive  of 
the  Republicanism  of  1801,  and  in  direct  violation  of  a  just  and  legiti- 
mate construction  of  the  Constitution  of  the  United  States.  To  "sustain 
Ihe&e  two  propositions,  it  may  be  readily  conceived  that  assertions  the 
Tnost  sweeping,  that  assumptions  the  most  gratuitous,  were  resorted 
to,  without  reference  to  the  change  which  the  events  of  fifteen  years 
must  make  in  the  policy  of  a  great  and  growing  empire,  or  to  the  fresh 
lights,  which  the  experience  of  our  government  is  perpetually  afford- 
ing, for  a  just  and  infallible  interpretation  of  its  theory. 

The  basis  of  the  argument  in  which  the  "Trio"  indulge,  is  in  con- 
tending, "for  a  strict  and  literal  construction  of  the  Constitution,"  and 
in  affirmiiig  an  absolute  negation  of  every  thing  wearing  the  aspect 
of  an  'Hmplied  power."  This  construction,  as  their  own  reasoning 
proves,  would  limit  the  sphere  of  our  National  Charter  merely  to 
those  suicidal  efforts,  which  in  the  end  would  have  produced  its  dis- 
solution, as  a  matter  of  inevitable  consequence.  To  these  views  the 
"Triumvirate"  added  the  tocsin  of  "State  Sovereignty;"  a 
note  which  has  been  sounded  in  "  the  Ancient  Dominion,"  with  such 
an  ill-omened  blast,  but  with  no  variety,  by  them,  to  relieve  its  dull 
and  vexatious  dissonance. 

It  is  against  these  doctrines,  to  support  which  the  authority  of  the 
highest  names  has  been  brought  forward,  the  most  criminal  examples 


Trrittcn  by  G.  M'Duffie,  Esq.  July,  1821.  5 

cited,  the  most  popular  prejudices  addressed,  that  "One  of  the  Peo- 
ple" has  taken  tlte  field. 

The  argument  of  "  One  of  the  People"  is  now  presented  in  an 
unbroken  succession,  familiar  to  the  most  ordinary,  and  gratifying  to 
the  most  comprehensive  understanding.  The  truths  that  are  unfolded 
are  in  their  nature  essentially  imperishable.  Whatever  may  be  the  fate 
of  our  National  Charter,  whether  our  descendants  are  long  destined  to 
admire  and  worship  that  solidity  which  may  give  duration  to  its  exist- 
ence, and  those  proportions  that  now  confer  grandeur  on  its  design,  or,  in 
a  far  different  mood,  to  mourn  over  the  ruins  of  so  fair  a  fabric,  equivalent 
testimony  will  be  afforded  of  the  sacredness  of  the  principles  that  are 
here  inculcated,  of  their  faithful  conservation  in  the  first  case,  or  q/*  ^Ae 
disastrous  and  desolating  violation  and  neglect  they  luill  have  sus- 
tained in  the  last. 

Before  we  conclude,  it  would  be  unjust  not  to  confess,  that  in  spite 
of  the  criminal  sophisms  which  the  "Trio'^  have  scattered  with  no 
unsparing  hand  throughout  their  dissertations,  they  have  claims  to  our 
gratitude,  in  being  the  efficient  cause  in  the  occasion  which  produced 
these  Essays.  There  is  a  species  of  compensation  to  the  world  for  the 
most  reckless  career  of  folly  and  of  vice,  in  the  high  and  impressive 
energy  with  which  genius  and  worth  rebuke  their  extravagance  and  li- 
centiousness. To  the  profligacy  of  Shaftesbury,  we  owe  the  exquisite 
poem  of  ''Absalom  and  Achitophel  :"  and  but  for  the  flies  which  wan- 
toned in  the  evening  tide  of  Pope's  declining  life,  we  should  have  lost 
the  amber  of  the  ''Dunciad,"  in  which  they  are  embalmed. 

Charleston,  {S.  C.)  October  \st,  1821. 

TO    THE    "TRIO." 


It  is  abundantly  apparent,  from  the  whole  tenor  and  spirit  of  your 
speculations,  that  you  aim  to  impair  the  confidence  which  the  Nation 
so  unanimously  and  justly  reposes  in  Mr.  Monroe's  administration, 
by  exciting  an  alarm  for  the  safety  of  state  rights.  I  trust  the  im- 
portance of  the  subject  will  excuse  me  to  my  Fellow-Citizens,  for  ad- 
dressing you  in  a  graver  style  than  the  tone  and  character  of  your  essays 
would  otherwise  deserve.  In  the  face  of  the  uniform  tenor  of  our 
experience  under  the  present  Constitution  of  the  United  States,  you 
affect  to  entertain  all  those  idle  and  chimerical  apprehensions  for 
the  state  sovereignties,  lohich  once  animorted  the  zeal  of  wiser  and 
better  men. 

Now,  if  you  will  attentively  follow  me  through  the  investigation 
which  I  propose  to  make  into  the  theory  of  our  complex  system  of 
government,  I  think  I  can  make  it  clear,  even  to  your  understanding, 
that  your  fears  are  perfectly  visionary,  having  no  shadow  of  foundation, 
either  in  the  organization  of  the  general  government,  or  the  experience 
of  its  operation.  I  have  already  adverted  incidentally,  to  the  fact,  that 
the  general  and  state  governments  are  organized  upon  precisely  the , 
sjune  principles.    The  general  government  is  as  truly  the  government 


6  Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress^ 

of  the  whole  people,  as  a  state  government  is  of  part  of  the  people. 
Its  Constitution,  in  the  language  of  its  preamble,  was  ordained  and  es- 
tablished by  "Me  People  of  the  United  States.^'  The  ''most  nume- 
rous branch"  of  the  National  Legislature,  the  House  of  Representatives, 
is  elected  in  the  same  way,  and  by  precisely  the  same  persons,  that 
elect  the  corresponding  branches  of  the  State  Legislature.  At  the  end 
of  every  two  years,  these  National  Representatives  depend  upon  the 
people  for  their  re-election.  The  other  branch  of  the  National  Legis- 
lature, the  Senate,  is  chosen  by  the  State  Legislatures,  because  ''the 
people  of  the  United  States"  delegated  that  power  to  them,  and  not  hy 
virtue  of  any  inherent  right  ivhich  they  possess  as  states.  For  the 
moment  the  people  met  in  convention,  all  the  elements  of  political 
)ower  returned  to  them  to  receive  a  new  modification  and  distribution, 
"nfcheir  sovereign  will.  At  the  end  of  six  years  the  Senators  cease  to 
such,  and  depend  for  their  re-appointment  upon  the  power  that 
created  them.  The  President  of  the  United  States  is  elected  for  the 
term  of  four  years  by  a  College  of  Electors,  to  be  appointed  "  in  such 
manner"  as  the  State  Legislatures  shall  respectively  direct.  It  appears, 
then,  that  the  "joeojo/e,"  "in  order  to  form  a  more  perfect  union,  es- 
tablish justice,  insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the  blessings  of  lib- 
erty to  themselves  and  their  posterity,"  created  the  whole  mass  of 
political  powers  that  constitute  the  general  government,  reserving  to 
themselves,  by  the  elective  franchise,  the  immediate  control  over  the 
whole  mass  of  delegated  powers.  What  security,  then,  did  the  Con- 
vention, or  in  other  words,  "the  People  of  the  United  States,"  pro- 
vide, to  restrain  their  functionaries  from  usurping  powers  not  delegated, 
and  from  abusing  those  with  which  they  are  really  invested  ?  Was  it 
by  the  discordaiit  clamours  and  lawless  resistance  of  the  state  rulers, 
that  they  intended  to  '^  insure  domestic  tranquillity,  and  form  a 
more  perfect  union?^'  Was  it  by  the  officious  interference  of  their 
inferior  agents,  appointed  for  no  other  purposes  than  those  indicated 
by  the  state  constitutions,  that  they  intended  to  "insure  a  salutary  con- 
trol  over  their  5Wj»er£or  agents?^''  No ;  the  constitution  will  tell  you 
what  is  the  real  security  they  have  provided.  It  is  the  responsibility 
of  the  officers  of  the  general  government,  not  to  the  state  authorities, 
but  to  themselves,  the  people.  This,  and  this  alone,  is  the  great  con- 
servative principle  which  lies  at  the  foundation  of  all  our  political  in- 
stitutions, and  sustains  the  great  and  glorious  fabric  of  our  liberty. 
This  great  truth  ought  to  be  kept  in  constant  and  lively  remembrance 
by  every  American.  It  is  the  very  life  and  soul  of  republican  freedom  ; 
and  no  statesman  is  worthy  to  minister  at  her  sacred  altar,  who  does 
not  distinctly  perceive,  and  deeply  feel  it.  The  state  governments, 
too,  are  the  absolute  creatures  of  the  people ;  and  have  no  political 
powers  not  delegated  to  them  by  their  respective  constitutions,  and 
consistent  with  the  constitution  of  the  United  States,  The  states, 
as  political  bodies,  have  no  original,  inherent  rights.    That  they 

HAVE  SUCH    rights    IS    A    FALSE,    DANGEROUS,    AND    ANTI-REPUBLICAN 
ASSUMPTION,  WHICH  LURKS  AT    THE  BOTTOM    OP    ALL    THE    REASONING 

IN  FAVOUR  OP  STATE  RIGHTS.    The  tie  of  responsibility  is  as  necessary 


WriUen  by  G,  M'Dvffie,  Esq,  July^  1821.  7 

to  bind  the  state  rulers  to  their  appropriate  sphere  of  duty,  as  it  is  to 
bind,  in  like  manner,  the  officers  of  the  general  government.  What, 
then,  is  the  true  question  so  much  agitated,  under  the  imposing  names 
of  ** state  rights,''  and  ^^consolidated  empire,"  and  who  are  the  real 
parties  to  the  issue  involved  in  it?  I  answer  emphatically,  the  true 
que^ion  is,  lohether  the  general  government  shall  be  controlled  by 
the  people ^of  the  states,  or  the  rulers  of  the  states;  and  the  parties 
litigant  are  the  people  of  all  the  states,  and  the  rulers  of  particular 
states.  Upon  the  issue  thus  presented,  one  would  imagine  there  could 
be  little  diversity  of  opinion  amongst  intelligent  and  considerate  men, 
as  to  the  verdict  that  ought  to  be  pronounced.  What  are  the  argu- 
ments necessarily  implied  in  the  assumption,  (I  hope  never  to  see  the 
day  when  I  shall  have  to  say,  usurpation)  of  the  state  authorities; 
They  say  in  effect  to  the  people,  (the  very  people,  too,  by  a  portion  of 
whom  they  are  created)  "you  have  not  sufficient  virtue,  intelligence, 
and  vigilance,  to  control  and  restrain  your  agents  of  the  general  gov- 
ernment. They  are  making  most  alarming  strides  in  the  usurpation, 
not,  to  be  sure,  of  your  rights,  but  of  ours;  and  yet  you  are  so  blind  as 
not  to  perceive,  or  so  torpid  as  not  to  regard  it.  For  these  weighty 
reasons,  us  thereunto  moving,  we  the  rulers  of  certain  states,  by  virtue 
of  certain  original,  inherent  powers  in  us  existing,  do  adjudge  and  de- 
termine that  you  the  people,  by  reason  of  a  certain  '  apathy  and  torpor,' 
that  'rages'  with  'violence,'  in  defiance  of  all  our  'usual  remedies,'* 
are  incapable  of  self-government ;  and  we  do,  therefore,  out  of  mere 
pity  for  your  weakness  and  incompetency,  and  from  the  consciousness 
of  our  own  infallibility,  resume  to  ourselves  the  supervision  and  con- 
trol of  the  general  government,  which  we  find  you  unworthy  to  ex- 
ercise.^^  To  this  modest  address  from  their  "high-mightinesses,"  the 
state  authorities,  I  beg  leave,  as  ^' one  of  the  jjeople,^^  to  make  the  fol- 
lowing reply,  in  the  name  and  in  behalf  of  all  my  fellow-citizens  : 
"We  beg  leave  to  inform  your  'mightinesses,'  that  we  still  think  our- 
selves capable  of  attending  to  our  own  business,  and  would  respect- 
fully suggest  that  you  might  find  sufficient  employment  in  attending  to 
the  affairs  we  have  committed  to  your  charge,  without  interfering  with 
those  matters  which  we  have  confided  to  other  agents.  In  ourselves 
exists  the  exclusive  right  of  supervising  and  controlling  the  conduct 
of  all  our  agents,  and  for  the  better  ordering  of  your  future  deportment, 
be  it  known  to  you,  that  we  shall  watch  over  your  actions,  with  pre- 
cisely the  same  vigilance  that  we  do  the  actions  of  our  agents  of  the 
general  government.  As  the  business  committed  to  these  latter  agents 
is  of  greater  importance,  and  of  a  wider  range  than  that  committed  to 
you,  w6  of  course  select  the  most  intelligent  and  virtuous  men  to  per- 
form it.  Your  attempt  to  control  them,  is  therefore  peculiarly  unbe- 
coming and  arrogant.  When  the  officers  of  the  general  government  do 
any  act  which  we  think  unauthorized  by  our  letter  of  instructions,  or 
wrong  in  itself,  we  shall  discard  them  from  our  service,  in  the  same 
manner  that,  for  similar  reasons,  we  shall  certainly  discard  you.  But 
as  long  as  we  continue  them  in  office,  and  approve  of  their  conduct, 

*  The  language  of  the  "  Trio," 


8  Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress, 

their  acts  are  ours,  and  any  attempt  on  your  part  to  resist  them,  is  an 
attempt  to  resist  the  power  that  created  you."    In  this  brief  reply  I 
think  every  American,  who  regards  the  integrity  and  harmony  of  the 
Union  as  necessary  to  the  enjoyment  of  practical  freedom,  will  readily 
and  heartily  concur.     But  the  assumption  of  the  state  authorities 
will  ajipear  still  more  glaring  and  unwarrantable^  when  we  reflect, 
that  whatever  is  assumed  as  a  ^^ state  right,^^  pertains  equally  to 
every  state  in  the    Union,   separately  and  individually.    For  ex- 
ample, a  question  arises  between  the  general  government  and  the  gov- 
ernment of  a  particular  state,  as  to  the  extent  of  their  respective  powers. 
Take  a  case  that  has  already  occurred.    The  National  Legislature  char- 
ter a  bank  to  answer  certain  great  national  purposes.    The  National 
Judiciary  decide  that  the  act  creating  the  corporation  is  constitutional 
and  valid.     The  state  authorities  decide  that  the  act  of  incorporation  is 
unconstitutional  and  void,  and  attempt,  by  a  Legislative  Act,  to  destroy 
the  bank.     Here  you  see  the  government  of  a  single  state  rising  up 
against  the  government  of  all  the  states,  and  attempting  to  resist 
that  government.     Now  let  me  ask  you,  which  of  the  parties  to  this 
contest  is  the  more  worthy  of  the  confidence  of  the  people  of  the  Unit- 
ed States,  the  general  government,  which  is  created  by  them  all,  and 
responsible  to  them  all,  or  the  state  government,  created  by  and  respon- 
sible to  not  more  than  one  twentieth  or  thirtieth  part  of  their  number  ? 
If  we  can  more  safely  trust  the  rulers  of  our  choice,  than  those  who 
are  not  the  rulers  of  our  choice,  the  question  is  answered.     For  to  the 
citizens  of  all  the  other  states,  except  the  one  which  I  have  supposed 
to  be  engaged  in  the  contest,  the  government  of  the  contesting  state 
is  perfectly  alien;  as  much  so  as  the  British  Parliament.    There 
cannot  be  a  greater  political  absurdity  than  to  suppose  our  liberties  are 
in  greater  danger  from  those  functionaries  whom  we  elect  and  control, 
than  from  those  whom  we   do  not  elect  and   control.    I  have  already 
stated  that  the  erroneous  proposition,  that  the  states,  as  such,  have  cer- 
tain  original,  inherent  rights,  lies  in  ambush  at  the  bottom  of  all  the 
reasonings  in  favour  of  state  rights  ;   and  I  will  now  add  another  pro- 
position,  equally  erroneous,  which  seems  to  be  involved  in  the  argu^ 
Tnents  of  those  who  are  jjerpetually  warning  us  to  beware  of  the  ge-' 
neral  government,   and  fly  to  the  state  governments  for  refuge. 
Their  reasonings  assume  that  the  general  government  is  alien  to  the 
people,  who  originally  created  it,  and  whose  living  energies  continue 
ally  sustain  it.     Now,  the  functionaries  of  the  general  government, 
with  all  their  grandeur  and  splendid  projects,  at  which  you  pretend  to 
be  so  much  alarmed,  can,  in  a  moment  as  it  were,  be  hurled  from  their 
stations,  in  a  peaceable,   constitutional  mode,  and  by  the  very  people 
whose  liberties  you    suppose  are  unsafe  in   their  custody.     Are  you 
aware  that  you  are  preaching  up  the  same  doctrines  that  the   '*  Holy 
Alliance"  of  Europe  are  attempting  to  seal  with  blood  ?  To  assert  that 
the  general  government  will  prostrate  the  liberties  of  the  people,  is  to 
assert  that  our  republican  experiment  will  fail,  and  that  our  constitution 
is  founded  upon  false  principles.     In  other  words,  that  the  people  are 
not  capable  of  governing  themselves.     For  my  own  part,  I  can  consci- 
entiously say,  (and  I  stand  upon  constitutional  ground  when  I  say  so,) 


JVritten  by  G,  M'Duffie^  Esq,  July,  1821.  9 

that  /  have,  as  a  citizeii  of  the  Union,  precisely  as  much  confidence 
in  the  general  government,  as  I  have  in  the  governm,ent  of  m.y  own 
state,  and  infinitely  more  than  I  can  or  ought  to  have  in  the  gov- 
ernment of  the  other  states,  I  think  too  highly  of  the  people  of  the 
United  States,  to  suppose  that  they  will  tolerate  any  encroachments  of 
the  national  government,  that  shall  endanger  their  liberty,  ^s  to  those: 
imaginary  rights,  that  are  by  some  supposed  to  exist  in  the  states,- 
in  contradistinction  to  the  people  of  the  states,  I  neither  understand 
nor  regard  them.  They  are  mere  sounds,  used  by  misguided  or  de- 
signing  men,  for  the  advancement  of  their  popularity  in  particular 
sections  of  the  Unio7i.  While  the  rights  and  liberties  of  the  people 
are  safe,  (and  they  must  be,  while  they  are  true  to  themselves)  all  the 
ends  of  government  are  accomplished.  Thus  have  I  endeavoured  ta 
convince  you,  from  the  organization  of  the  general  government,  and 
its  responsibility  to  the  people,  that  it  is  as  safe  ai  depository  of  the  rights^ 
of  all  the  people,  as  the  state  governments  are  of  the  rights  of  part  of 
them.  But  as  strong  prejudices  and  apprehensions  do  exist  in  some  of 
the  states  on  this  subject,  I  will  endeavour  to  trace  these  prejudices  to 
their  origin.  I  think  they  are  to  be  ascribed  to  two  causes:  large  states,- 
and  men  whose  ambition  exceeds  their  talents.  All  history  proves  that 
in  a  mere  confederacy  of  states,  the  largest  and  most  powerful  member 
will  ultimately  attain  such  an  ascendency  as  to  govern  the  whole.  It 
is  equally  clear,  that  in  proportion  as  the  confederacy  approaches  ta 
the  form  of  one  common  national  government,  the  ascendency  of  the 
largest  members  will  be  diminished.  At  the  time  our  present  consti^ 
tution  was  adopted,  Virginia  was,  in  all  that  constitutes  political  pow- 
er, decidedly  the  largest  state  in  the  Union.  Accordingly,  in  that 
State,  the  most  violent  and  persevering  opposition  was  made  to  the 
present  constitution  of  the  general  government:  and  since  we  have  be- 
come a  united  people,  the  politicians  of  Virginia  have  been  most 
loudly  clamorous  about  state  rights,  and  have  given  the  tone  topar- 
ticular  factions  in  other  states,  on  the  subject.  The  ather  cause 
which  I  have  assigned  for  the  prevalence  of  the  false  doctrines  I  am 
considering,  is  in  some  measure  connected  with  the  cause  just  men- 
tioned. AMBITIOUS  MEN  OF  INFERIOR  TALENTS,  FIND- 
ING THEY  HAVE  NO  HOPE  TO  BE  DISTING.UISHED  IN 
THE  COUNCILS  OF  THE  NATIONAL  GOVERNMENT,  NA- 
TURALLY WISH  TO  INCREASE  THE  POWER  AND  CONSE- 
QUENCE OF  THE  STATE  GOVERNMENTS,  THE  THEA- 
TRES IN  WHICH  THEY  EXPECT  TO  ACQUIRE  DISTINC- 
TION. It  is  not,  therefore,  a  regard  for  the  rights  of  the  people, 
and  a  real  apprehension  that  those  rights  are  in  danger,  that  have 
caused  so  much  to  be  said  on  the  subject  of  prostrate  state  sovereign- 
ties and  consolidated  empire.  It  is  the  ambition  of  that  class  of 
politicians,  who  expect  to  figure  only  in  the  state  councils,  and  of 
those  states  who  are  too  proud  to  acknowledge  any  superior ;  an 
ambition  and  a  pride  of  the  most  alarming  and  dangerous  tendency, 
which,  if  not  discountenanced  by  moderate  and  reflecting  men,  may  at 
some  future  day  dissolve  our  happy  union,  and  sweep  away,  in  a  tide 
B 


10  Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress, 

of  civil  blood,  all  that  constitutes  the  happiness  of  individuals  or 
the  glory  of  a  nation. 

I  will  now  proceed  to  show,  in  a  few  words,  that  from  an  experience 
of  the  actual  operation  of  the  general  government,  we  have  as  little 
cause  to  apprehend  danger  as  from  the  principles  of  its  organization. 
Have  we  not  as  a  nation  enjoyed  all  the  happiness  which  it  is  in  the 
power  of  government  to  confer?  Where  is  the  man  that  has  felt  the 
oppressive  arm  of  the  general  government?  In  the  whole  history  of 
its  progress  you  cannot  point  to  one  solitary  act  of  oppression.  It  has 
w^rested  from  no  man  his  property  ;  it  has  deprived  no  man  of  his  liberty. 
But  we  have  seen  its  salutary  and  protective  energies  directed  against  a 
foreign  foe.  We  have  seen  the  pride  of  that  haughty  foe  humbled  by  the 
victorious  arms  of  the  republic.  We  have  seen  our  wrongs  avenged ; 
our  rights  vindicated,  and  our  national  character  exalted ;  all  by  the 
"eneral  government.  And  seeing  all  this,  we  have  rejoiced  that  it  is 
the  government  of  our  choice.  On  the  other  hand,  we  have  been  in- 
volved in  great  embarrassments  by  the  refractory  and  unconstitu- 
tional proceedings  of  some  of  the  states.  In  the  very  war  which  raised 
the  character  of  the  general  government  so  much  in  the  coafidence  and 
affections  of  the  people,  the  refusal  of  the  Governor  of  one  of  the  Eas- 
tern States  to  obey  the  call  of  the  President,  threatened  to  throw  the 
country  into  the  most  alarming  condition,  and  to  paralyze  the  very  arm 
to  which  we  all  looked  for  protection.  Rest  assured,  then,  the  gene- 
ral government  is  not  an  object  of  dread.  Our  ancestors  did  not 
create  it  to  be  an  object  of  terror  to  the  people,  but  '*  to  secure  the 
blessings  of  liberty  to  themselves  and  their  posterity." — They  reared 
it  as  a  durable  monument,  which  should  carry  their  names,  in  glory,  to 
future  ages.  They  will  not  be  deceived.  As  long  as  there  shall  be  a 
heart  to  feel  for  freedom,  and  a  head  capable  of  understanding  its  prin- 
ciples, those  who  organized  the  general  government  will  be  hallowed 
as  the  wisest  of  statesmen  and  the  best  of  patriots.  And  I  am  well 
assured  that  the  government  they  created,  will  not  be  the  less  evincive 
of  the  wisdom  of  its  framers,  because  it  departs  from  the  principle  of  a 
mere  confederacy.  I  shall  show,  that  its  admirable  balance  can  be 
jeopardized  only  by  the  eccentric  and  centrifugal  tendencies  of  the 
States. 

But  I  will  first  offer  some  additional  views  tending  to  show  that  the 
fears  you  profess  to  entertain,  that  the  general  government  will  pros- 
trate the  state  sovereignties,  are  wholly  unfounded  either  in  the  nature 
of  things,  or  the  history  of  nations. — That  there  is,  in  reality,  no  such 
danger,  will  be  apparent  to  any  man  at  all  familiar  with  the  history  of 
human  ambition,  who  will  attentively  consider  the  nature  of  the  pow- 
ers which,  under  our  federative  system,  fall  to  the  share  of  the  state 
governments. — For  it  can  be  conclusively  shown,  that  these  constitute 
precisely  the  class  of  political  powers  that  has  the  least  attractions  for 
ambition,  and  which,  even  the  most  despotic  governments,  possessing 
extensive  territories,  have  voluntarily  thrown  off,  as  inglorious  incum- 
brances, and  committed  to  local  or  provincial  authorities.  The  powers 
of  the  state  governments  are  limited  to  those  measures  of  local  regula- 
tion, which,  taken  together,  constitute  the  internal  police  of  the  respec- 


mittm  by  G.  M'lhiffie,  Esq.  July,  1821.  11 

tive  states.  They  establish  the  rules  of  property ;  fix  and  define  the 
rights  of  persons;  and  provide  for  the  security  of  both  by  appropriate 
civil  remedies,  and  criminal  sanctions  administered  and  enforced  by 
their  judicial  tribunals.  The  subjects  embraced  within  the  scope  of 
these  regulations,  though  highly  important  in  the  estimate  of  national 
happiness,  have  nothing  of  that  imposing  and  attractive  splendour 
which  can  dazzle  the  minds  of  ambitious  rulers.  Cast  your  eyes  into 
history,  that  bloody  record  of  the  sufferings  of  the  people,  and  the  sins 
of  their  rulers.  Survey  with  attention  those  mighty  wastes,  through 
\vhich  Ambition  has  held  his  lofty  career,  and  in  which  he  has  reared 
his  proudest  and  bloodiest  trophies.  And  when  you  have  done  so,  con- 
sult the  record  to  ascertain  the  objects  that  stimulated,  and  the  means 
that  facilitated,  those  mighty  and  desolating  achievements.  Was  that 
ambitious  Conqueror,  who  waves  his  iron  sceptre  over  the  trembling 
and  subject  nations  that  have  yielded  to  the  terror  of  his  arms,  stimu- 
lated in  his  bloody  march  by  a  desire  to  regulate  the  domestic  police 
of  the  conquered  nations  ?  Was  it  the  power  of  fixing  and  defining  the 
individual  and  private  rights  of  his  subjects,  that  furnished  the  means 
of  his  aggral^dizement?  No.  He  was  stimulated  by  higher,  though  less 
worthy  aims,  and  sustained  by  mightier  means.  These  I  shall  pre- 
sently consider.  The  states  are  constitutionally  restrained  from  "en- 
tering into  any  treaty,  alliance,  or  confederation ;  granting  letters  of 
marque  and  reprisal ;"  and  also  from  ^Maying  any  duty  of  tonnage; 
keeping  troops  or  ships  of  war  in  time  of  peace ;  entering  into  any 
agreement  or  compact  with  another  state,  or  with  a  foreign  power,  or 
engaging  in  war  unless  actually  invaded,  or  in  such  imminent  danger  ^ 
as  will  not  admit  of  delay;  without  the  consent  of  Congress."  The 
powers  of  the  state  governments,  then,  are  not  only  limited  in  their 
operation,  but  essentially  pacific  in  their  nature.  From  all  "the  pride, 
pomp,  and  circumstance  of  glorious  war;"  from  all  that  class  of  polit- 
ical actions,  in  short,  which  furnish  the  most  interesting  themes  of  his- 
tory, and  attract  in  their  recital,  the  almost  exclusive  attention  of  the  ' 
mass  of  mankind,  the  states  are  absolutely  and  wisely  excluded.  When, 
therefore,  we  consider  the  nature  of  ambition ;  when  we  reflect  that  it 
is  desirous  of  performing  those  actions,  only,  which  history  records 
with  her  brightest  and  most  enduring  colours,  and  nations  behold  with 
the  highest  admiration,  the  folly  of  the,  apprehension  that  the  general 
govermnent  will  subvert  the  governments  of  the  states^  is  most  strik-  ^ 
ingly  apparent. 

But  still  more  strikingly  apparent  will  be  the  folly  of  such  an  appre-  \ 
hension,  when  we  come  to  compare  the  powers,  which  have  been 
clearly  and  unequivocally  delegated  to  the  general  government,  with 
those  which  it  can  acquire  by  encroachments  on  the  state  authorities. 
By  the  express  letter  of  the  National  Charter,  Congress  has  power  ''to 
lay  and  collect  taxes,  dutieis,  imposts,  and  excises ;"  to  ''declare  war," 
to  "raise  and  support  armies,"  and  to  "provide  and  maintain  a  navy." 
These  powers  are  granted  in  the  most  general  and  unlimited  terms.  Upon 
the  discretion  of  Congress  in  "laying  and  collecting  taxes,"  and  in 
''raising  and  supporting  armies,"  there  are  no  restrictions  but  those 
imposed  by  nature.     Congress  may  push  these  powers  to  the  utmost 


12  Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress, 

verge  indicated  by  the  physical  capacity  of  the  country.  They  may, 
«pon  the  slightest  occasion,  and  for  the  most  unwise,  improvident,  and 
wicked  ends,  draw  from  the  people  (of  the  '*  states"  too!)  the  utter- 
most farthing  that  can  be  spared  from  their  suffering  families,  to  fill  the 
national  coffers  ;  and  call  out  the  Jast  man  that  can  be  spared  from  rais- 
ing the  necessaries  of  life,'  to  fill  the  national  armies  and  fight  the  bat- 
tles of  ambitious  rulers.  And  all  this,  however  inexpedient,  unjust  and 
tyrannical,  they  can  do,  without  transcending  the  limits  of  their  con- 
stitutional authority.  The  general  government  is  thus  invested,  (safely 
and  constitutionally  invested)  with  an  unlimited  command  over  the 
purse  and  the  sword  of  the  nation,  those  mighty  and  resistless  instru- 
ments of  lawless  ambition  and  encroaching  power ;  and  yet  the  very 
rulers,  in  whose  hands  these  tremendous  engines  are  harmless  to  the 
people,  and  terrible  only  to  their  enemies,  are  held  up  and  denounced 
by  your  warning  voices,  as  the  depredators  upon  the  more  peaceful, 
inefficient,  and  unattractive  powers  of  the  state  governments.  We  are 
called  upon  to  believe  that  our  federal  rulers  will  use  with  moderation 
the  very  powers  by  which  ambitious  men  have,  in  all  ages,  built  up  the 
monuments  of  their  own  aggrandizement  upon  the  ruins  (Jf  the  consti- 
tution, and  amidst  the  execrations  of  the  people ;  and  yet  that  these 
rulers  will  consummate  their  ambitious  purposes,  and  subvert  our  libera 
ties  by  the  paltry  and  petit  larceny  process  of  pilfering  little  fragments 
from  the  temples  of  state  sovereignty  !  !  !  If  one  of  you  were  to  trust 
a  madman  with  a  broad-sword,  and  yet  be  alarmed  lest  he  should  arm 
himself  with  a  weapon  to  attack  you,  by  invading  your  wife's  pin- 
cushion, your  fears  would  not  be  more  ridiculous,  nor  your  inconsist- 
ency more  palpable.  Be  assured  it  is  not  in  the  course  of  ambition  to 
descend;  for  "in  its  proper  motion"  it  "ascends."  The  supreme  ju- 
diciary of  a  state  would  hardly  be  inclined  to  usurp  jurisdiction  over 
the  class  of  cases  that  fall  within  the  exclusive  and  humble  jurisdiction 
of  a  common  magistrate.  Abstractedly  considered,  power  has  no  al- 
lurements. It  is  only  desirable  from  its  imposing  associations. 
*  *  *  *  * 

If,  after  all  that  has  been  said,  you  still  continue  to  dread  the  extinc- 
tion of  the  state  governments  in  one  great  consolidated  empire,  I  must, 
for  the  present,  give  you  up  as  incurable  ;  in  the  hope,  however,  of 
producing  some  effect  hereafter,  by  showing  that  there  are  dangers, 
much  more  imminent  and  alarming,  to  be  apprehended  from  an  oppo- 
site direction. 

That  the  real  danger,  which  it  demands  all  the  wisdom  and  patriotic 
vigilance  of  the  American  statesmen  to  obviate,  proceeds  from  the  cen- 
trifugal tendencies  of  the  states,  was  the  doctrine  invariably  held  by 
the  framers  of  the  federal  constitution.  And  I  wish  distinctly  and  em- 
phatically to  impress  it  upon  you,  that  at  the  very  era  of  the  constitu- 
tion, when  the  true  "  principles  of  the  revolution"  burned  with  a  living 
and  holy  fervour  in  the  bosoms  of  those  who  had  breasted  the  rudest 
shocks  of  the  revolutionary  war :  Washington,  Madison,  and  Ha- 
milton, were  the  firm  and  masterly  supporters  of  this  very  doctrine. 
The  views  of  the  two  last  named  statesmen  are  recorded  in  "  The  Fed- 
eralist/'  that  able  and  unanswerable  commentary  on  the  federal  consti- 


TFriden  by  G,  M'Duffie,  Esq.  July,  1821.  13 

tution  ;  which  is  now  almost  universally  received  as  the  standard  of  po- 
litical orthodoxy.  And  it  is  most  extraordinary  that  in  your  affected 
"  recurrence  to  fundamental  principles,"  you  have  entirely  overlooked 
the  opinions  and  commentaries  of  the  friends  and  authors  of  that  con- 
stitution, which  will  stand  amidst  the  wreck  of  empires  as  an  imperish- 
able monument  of  their  wisdom  ;  and  have  based  yourselves  upon  the 
visionary  fears  and  dismal  forebodings  of  those  who  were  opposed 
to  it.  Whether  I  am  to  understand  that  you  are  at  this  day  not  only 
opposed  to  the  administration,  but  the  constitution  of  our  govern- 
ment, and  wish  not  only  to  change  our  rulers,  but  to  destroy  that  con- 
stitution ;  or  that  you  suppose  that  the  opponents  of  that  instrument 
understand  its  principles  better  than  its  authors ;  I  confess  I  am  at  a 
loss  to  determine.  For  if  you  are  sincere  in  your  professions  of  attach- 
ment for  the  ^'principles  of  the  revolution,"  and  of  the  federal  consti- 
tution, and  are  not  acting  a  part  in  a  great  political  manoeuvre ;  if  you 
are  honestly  seeking  for  the  truth  of  principles,  and  not  for  the  means 
of  individual  aggrandizement ;  to  what  oracles  could  you  have  applied 
so  likely  to  give  you  an  unerring  response,  as  the  immortal  patriots  and 
statesmen  whose  names  I  have  just  mentioned  ?  But  with  an  infelicity 
which  seems  to  be  your  peculiar  characteristic,  you  place  your  princi- 
pal reliance  upon  those  opinions  of  Patrick  Henry,  which,  by  your 
own  admission,  he  himself  renounced,  after  experience  had  dispelled 
the  delusions  by  which  his  warm  imagination  had  been  carried  away. 
Pretermitting,  however,  any  further  remarks  on  the  question  of  authori- 
ty, I  will  endeavour  to  show  by  arguments  drawn  as  well  from  the  *'  fun- 
damental principles"  of  genuine  representative  republicanism,  as  from 
our  actual  experience,  that  we  have  more  cause  of  apprehension 

FROM  THE  states,  THAN  FROM  THE  GENERAL  GOVERNMENT  ;  OR,  IN 
OTHER  words,  THAT  THERE  IS  IN  OUR  SYSTEM  A  GREATER  TENDEN- 
CY   TO    DISUNION    THAN    TO    CONSOLIDATION. 

It  will  be  recollected  that  the  responsibility  of  public  functionaries 
is  the  only  true  and  adequate  security  for  liberty,  connected  with  the 
organization  of  the  various  departments  of  our  political  system.  And, 
whenever,  in  the  ramifications  of  that  system,  we  find  any  part  in 
which  the  principle  of  responsibility  does  not  operate  co-extensively 
with  the  sphere  and  compass  of  the  power  which  it  is  intended  to  re- 
strain, we  have  just  grounds  to  apprehend  that  the  harmony  of  the  sys- 
tem will  be  disturbed  by  the  irregular  and  eccentric  wanderings  of  the 
power  thus  inadequately  restrained. — Now  it  results  from  the  practical 
operation  of  our  complex  system,  that  the  government  of  each  state, 
though  elected  by  the  people  of  that  state,  and  responsible  to  them 
only,  may  notwithstanding,  affect  by  their  proceedings  the  vital  inter- 
ests of  the  whole  Union.  So  far,  then,  as  the  interests  of  the  '^  people 
of  the  United  States"  are  liable  to  be  impaired  or  destroyed  by  the 
measures  of  the  government  of  a  particular  state,  they  are  exposed  \.q 
the  action  of  a  power  absolutely  irresponsible  to  them.  If  the  general 
government  should  encroach  upon  the  powers  and  violate  the  rights  of 
the  states,  they  would  be  infringing  upon  the  interests,  and  rousing  the 
indignation  of  the  sovereign  power  that  created  them,  the  people  of  the 
states ;  and  would  of  course  feel  all  the  restraint  that  responsibility 


\ 


14  Defence  of  a  Liberal  Consfrucfion  of  the  Poivers  of  Congress, 

could  impose.  But  the  converse  of  the  proposition  does  not  hold  (rue. 
If  a  state  government  should  infringe  upon  the  interests  of  the  Union, 
or,  more  precisely,  of  the  people  of  all  the  other  states,  their  indigna- 
tion, however  just,  would  be  vain  and  powerless;  for  the  principle  of 
responsibility  could  hot  be  brought  to  bear  upon  the  usurping  or 
aggressing  state  government.  Suppose,  for  example,  that  during  a 
war,  upon  which  the  very  liberty  of  the  country  depended,  a  particu- 
lar state,  under  the  influence  of  some  violent  local  excitement,  should 
attempt  to  paralyze  the  arm  of  the  general  government,  by  restraining 
and  limiting  their  power  of  recruiting  soldiers,  or  by  refusing  to  order 
out  the  quota  of  militia  constitutionally  demanded  by  the  general  go- 
vernment. These  are  not  extreme  cases  ;  for  the  latter  actually  occur- 
red in  one  of  the  Eastern  states,  and  the  former  either  occurred  or  was 
agitated  in  another,  during  the  late  war  with  Great  Britain.  I  ask  what 
constitutional  means  have  the  people  of  the  Union,  in  such  cases,  to 
bring  back  the  rulers  of  the  refractory  states  to  a  sense  of  their  duty? 
Can  they  hurl  them  from  the  ^*  bad  eminence"  to  which,  perhaps, 
their  very  views,  [these  very  views?]  have  raised  them?  Can  they  take 
from  them  the  power  thus  perverted  to  the  unhallowed  purposes  of 
faction  and  sedition  ?  Can  they  snatch  from  their  grasp  the  firebrand, 
which  from  the  heights  of  their  constitutional  power  they  threaten  to 
cast  '^hideous  ruin  and  combustion^''  into  the  temple  of  union  ? 
No.  As  long  as  the  local  excitement  of  their  constituents  shall  pre- 
vail, the  unanimous  and  indignant  voice  of  all  the  people  of  the  Union 
besides,  cannot  shake  the  foundations  of  their  power.  If,  then,  there 
be  any  virtue  in  the  great  principle  of  political  attraction  which  sus- 
tains the  harmony  of  our  admirable  system  of  practical  freedom  ;  it  is 
quite  obvious  that  whenever  a  case  occurs,  in  which  the  real  or  imagi- 
nary interests,  the  passions  or  prejudices  of  a  particular  state,  shall 
stand  opposed  to  the  interests  of  the  Union  ;  that  attraction  instead  of 
binding  the  state  rulers  to  the  general  interest,  will  absolutely  carry 
them  from  it.  And  are  we  permitted,  either  by  a  knowledge  of  the 
principles  of  human  nature,  or  a  view  of  our  own  brief  experience  as  a 
nation,  to  doubt  that  such  cases  will  frequently  occur?  He  must  have 

READ  THE  LESSONS  OF  HISTORY  TO  LITTLE  PURPOSE,  WHO  DOES  NOT 
PERCEIVE  THAT  THE  PEOPLE  OF  PARTICULAR  STATES  ARE  LIABLE  TO 
PALL,  OCCASIONALLY,  INTO  A  DANGEROUS  AND  MORBID  EXCITEMENT 
UPON  PARTICULAR  SUBJECTS  ;  AND  THAT  UNDER  THIS  EXCITEMENT, 
THEY  WILL  IMPEL  THEIR  RULERS  INTO  THE  ADOPTION  OF  MEASURES  IN 

THEIR  TENDENCY  DESTRUCTIVE  TO  THE  Union.  Nor  wiU  any  Consid- 
erate man  look  upon  this  source  of  danger,  but  with  the  deepest  con- 
cern. How  many  local  causes  are  there,  calculated  to  generate  feelings 
hostile  to  the  general  government  ?  Diversity  and  peculiarity  of  local 
interest,  whether  real  or  imaginary.  Political  prejudices  and  opinions, 
peculiar  to  one  or  a  few  states.  Embarrassments  growing  out  of  a  vi- 
tiated currency,  which  the  general  government  may  find  it  necessary 
to  correct;  a  duty  of  the  highest  moral  and  political  obligation,  yet  un- 
gracious in  its  nature,  and,  for  a  time,  apparently  oppressive.  If  to 
these  we  add,  THE  SELFISH  AND  AMBITIOUS  VIEWS  OF 
DESIGNING  DEMAGOGUES,  we  shall  have  a  specimen  of  the  nu- 


Written  by  G,  M'Duffie,  Esq.  /%,  1821.  -  15 

merous  and  multifarious  causes  of  disunion,  which  exist  in  the  passions    f 
of  men  and  the  pride  of  the  states.  J 

Unfortunately  for  us,  we  are  not  left  to  mere  theoretical  reasoning  ^^ 
upon  this  subject.  We  have  seen  embodied,  in  the  living  current  of  I 
events,  the  very  dangers  of  which  I  have  been  speaking.  Who  can  for-  \ 
get  how  all  the  energies  which  state  organization  could  confer,  were  in 
certain  states  exerted  to  impair  our  national  energies,  in  the  late  war, 
and  prostrate  our  country,  degraded,  disgraced,  and  discomfited,  at  the 
feet  of  a  proud  and  imperious  foe?  Who  can  forget  that  the  prayers  of 
*^  states, '^  almost  in  the  very  forms  of  constitutional  proceeding,  were, 
from  the  very  temples  of  state  sovereignty,  sent  up  to  the  throne  of 
Heaven,  breathing  maledictions  on  the  armies  of  the  republic?  Who, 
that  feels  any  interest  in  the  true  glory  of  his  country,  does  not  wish  ^ 
the  story  of  the  Hartford  Convention  blotted  for  ever  from  her  annals ; 
and  who  that  regards  her  permanent  happiness  would  not  deprecate  the.  / 
recurrence  of  such  another  infamous  association,  as  the  greatest  calami- '.  J 
ty  that  could  befall  her?  "j 

And  do  we  not  see  almost  passing  before  us,  in  this  tranquil  period  [  A 
of  peace,  an  example  of  state  insubordination,  less  glaring,  but  even  | 
more  alarming  than  that  to  which  I  have  just  alluded  ?  The  laws  oj^^ 
the  Union,  clothed  with  the  most  solemn  sanctions  of  the  constitu-i 
Hon,  have  been,  tender  the  extreme  pressure  of  local  em,barrassment, 
absolutely  resisted  by  the  state  authorities.  After  the  supreme  tribu- 
nal of  the  country  pronounced  an  act  of  Congress  constitutional,  and 
consequently  the  supreme  law  of  the  land,  a  state  government  has 
openly  opposed  its  execution.  It  will  be  readily  understood,  that  I  al- 
lude to  the  embarrassing  conflict  of  authority  between  the  general  go- 
vernment and  the  state  of  Ohio,  in  relation  to  the  National  Bank.  And 
I  hesitate  not  to  pronounce  it  one  of  the  most  portentous  events  that 
has  occurred  since  the  adoption  of  the  federal  constitution.  For  if,  af- 
ter the  National  Judiciary  have  solemnly  affirm.ed  the  constitution- 
ality  of  a  law,  it  is  still  to  be  resisted  by  the  state  rulers,  the  con- 
stitution is  literally  at  an  end ;  a  revolution  of  the  government  is 
already  accomplished,  and  anarchy  ivaves  his  horrid  sceptre  over 
the  broken  altars  of  this  happy  union  ! 

In  the  examples  to  which  I  have  alluded  thus  briefly,  of  insubordi- 
nation in  state  rulers,  we  distinctly  perceive  tlie  effects  of  that  una- 
voidable want  of  responsibility  to  the  Union,  which  I  consider  the 
weakest  part  of  our  federative  system.  And  what  is  still  more  alarm- 
ing, every  member  that  shall  be  admitted  into  the  Union,  will  increase 
the  danger  to  be  apprehended  from  this  source.  It  requires  but  little 
skill  in  ringing  the  changes  of  political  permutation,  to  enable  us  to 
perceive  that  in  proportion  as  we  increase  the  number  of  states  that 
compose  the  Union,  we  multiply  the  chances  of  local  combinations 
unfriendly  to  it.  And,  although  by  enlarging  the  confederacy,  we  shall 
diminish  the  relative  strength  of  any  such  probable  combination,  and 
of  course  the  probability  of  a  forcible  disruption ;  yet  the  increased 
frequency  of  collisions  between  the  general  and  state  governments, 
will  be  scarcely  less  to  be  deprecated.  For  it  ought  never  to  be  forgot- 


16  Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress, 

ten,  that  this  Union  is  not  to  be  sustained  by  physical  force,   but  by 
^  kindred  sympathies  and  mutual  good  will. 

Let  us  now  consider  the  principles  of  construction  which  ought  to 
prevail  in  ascertaining  the  extent  of  the  powers  delegated  by  the  Con- 
stitution to  the  national  government ;  and  of  the  means  provided  for 
the  application  of  those  principles.  As  far  as  I  can  collect  any  distinct 
propositions  from  the  medley  of  unconnected  quotations  you  have  made 
on  these  very  important  subjects,  I  understand  you  to  affirm,  that  in 
expounding  the  Federal  Constitution,  we  should  be  "tied  down  to  the 
strict  letter"  of  that  instrument;  and  that  the  general  government 
*'  was  not  made  the  exclusive  or  final  judge  of  the  extent  of  the  powers 
delegated  to  itself,  but  that,  as  in  all  other  cases  of  compact  among  par- 
ties having  no  common  judge,  each  party  has  a  right  to  judge  for 
itself.  ^^  Jis  these  may  be  considered  the  concentrated  essence  of  all 
the  wild  and  destructive  principles  that  have  ever  been  advanced,  in 
relation  to  the  subjects  under  consideration,  and  as  they  constitute 
the  basis  of  a  contemplated  revolution  in  the  administration  of  the 
general  government;  I  have  been  particular  in  using  your  very  lan- 
guage, lest  I  should  be  suspected  of  giving  my  own  impressions  of  the 
result  of  your  arguments,  or,  more  correctly  speaking,  of  your  quo- 
tations. 

In  asserting  that  we  ought  not  to  travel  out  of  the  *' strict  letter"  of 
the  Constitution,  I  am  almost  disposed  to  believe,  in  charity,  that  you 
were  ignorant  of  the  nature  of  your  own  proposition.  For  if,  with  its 
obvious  and  necessary  consequences  before  you,  I  could  believe  you 
would  still  maintain  it,  I  should  be  compelled  to  think  very  unfavour- 
ably of  your  characters;  as  nothing  is  more  clearly  demonstrable  than 
that  your  rule  of  construction  would  paralyze  every  living  energy 
of  the  Constitution,  and  absolutely  annihilate  the  government. 
Without  implied  and  incidental  powers,  alm,ost  the  entire  mass  of 
means  by  which  the  m,achine  of  government  is  kept  in  motion, 
could  not  be  wielded  a  single  moment,  but  would  fall  from  the 
hands  of  the  administration.  Congress  have  power,  for  example,  by 
"the  strict  letter"  of  the  Constitution,  to  "declare  war,"  and  "raise 
and  support  armies ;"  but  not  to  erect  arsenals  and  fortifications,  and 
provide  for  the  purchase  of  the  munitions  of  war.  They  have  power 
**to  lay  and  collect  taxes  and  imposts,"  but  the  "strict  letter"  of  the 
constitution  gives  them  no  authority  to  create  officers  and  custom- 
houses, any  more  than  to  incorporate  banks,  for  their  collection.  They 
have  power  to  **  borrow  money,"  and  to  "  pay  the  debts  of  the  Union  ;" 
but  here  "  the  strict  letter"  does  not  confer  any  authority  to  create 
commissioners  of  loans,  or  commissioners  to  apply  the  sinking  fund,- 
or  any  other  means  of  "borrowing,"  in  the  one  case,  or  "paying"  in 
the  other.  They  have  power  to  "  coin  money  :"  but  regarding  merely 
the  "strict letter,"  the  establishment  of  a  mint  would  be  an  unconsti- 
tutional extension  of  the  "patronage"  of  the  government. 

Now  if  you  will  but  imagine  to  yourselves  a  war  without  permanent 
structures  for  national  defence ;  an  army  without  arsenals,  magazines, 
or  munitions  of  war ;  a  system  of  revenue  without  officers  or  custom- 
houses }  a  funding  system   without   commissioners   to   carry  it  into 


Written  by  G.   M*Duffie,  Esq.  July,  1821.  17 

effect ;  and  a  scheme  of  coining  money  without  a  mint  establish- 
ment ;  you  may  form  a  pretty  adequate  conception  of  the  result  of  your 
rule  of  constitutional  interpretation.  I  will  now  show  that  you  have 
not  the  semblance  of  authority  to  sustain  that  rule.  It  is  laid  down,  in 
an  elementary  writer,  deemed  the  first  authority  in  every  state  in  the 
union,  that  '*  the  most  universal  and  effectual  way  of  discovering  the 
true  meaning  of  a  law,  when  the  words  are  dubious,  is  by  considering 
the  reason  and  spirit  of  it.^'  This  rule  prevails  throughout  the  civil- 
ized world,  both  in  the  construction  of  municipal  laws  and  of  treaties 
and  confederacies  between  independent  nations.  It  results  from  the 
essential  imperfections  of  the  human  mind  and  of  human  language^ 
Without  it  the  affairs  of  nations  would  be  arrested  in  their  progress. 
And  yet  you  utterly  deny  that  we  have  any  warrant  for  construing  the 
constitution  with  reference  to  its  spirit.  Even  in  the  construction  of 
private  instruments,  where  the  subjects  to  which  they  relate  are  within, 
the  actual  presence  of  the  contracting  parties,  the  same  liberal  regard 
to  the  spirit  and  intention  of  the  parties  generally  prevails.  Is  there,  | 
then,  any  reason  why  the  Constitution  of  the  United  States  should  re-  I 
ceive  a  more  strict  and  technical  construction  than  a  municipal  law  or  | 
a  private  contract?  Was  it  intended  merely  to  furnish  themes  for  the  i 
disputations  of  professional  men  ?  Far  from  it.  It  was  formed  by  the  i 
people,  and  for  the  people.  Popular  in  its  creation  and  its  objects,  it 
was  intended  that  it  should  be  construed  by  the  plain  and^  obvious 
dictates  of  common  sense,  and  with  a  liberal  regard  to  the  great  na- 
tional ends  it  was  designed  to  accomplish.  Any  man  who  will  con- 
sider for  a  moment  the  vast  field  of  human  affairs  embraced  within  the 
scope  of  the  constitution,  and  that  in  its  very  nature  it  must  be  applied 
to  all  those  vicissitudes  which,  in  the  succession  of  ages,  shall  mark 
our  progress  as  a  nation,  cannot  but  perceive  the  absurdity  of  construing 
this  great  national  Charter,  as  a  lawyer  would  construe  an  indictment. 
The  officer  v^ho  draws  an  indictment,  and  the  scrivener  who  draws  a 
private  conveyance,  have  the  whole  matter  im.mediately  before  them^ 
to  which  these  documents  respectively  refer;  and  there  is,  of  course, 
no  difficulty  in  making  a  specific  enumeration  of  particulars.  But  the 
framers  of  a  constitution  have  to  provide  for  all  those  modifications  and 
combinations  of  human  events,  and  all  those  varying  interests  of  socie- 
ty, for  which  human  wisdom  cannot  make  any  specific  provision.  To 
enumerate  the  various  and  detailed  operations  of  a  government  for  cen- 
turies to  come,  and  the  infinite  variety  of  means  that  shall  be  employ- 
ed, is  not  therefore  the  object  of  a  constitution.  Its  true  object  is  to 
distribute  the  great  political  powers  amongst  the  several  departments 
of  the  government,  giving  a  liberal  discretion  to  public  agents,  in  se- 
lecting the  means  by  which  those  powers  shall  be  carried  into  effect, 
but  providing  at  the  same  time,  by  their  responsibility  to  the  people, 
the  only  adequate  security  against  the  abuse  of  that  discretion.  You 
seem,  quite  alarmed  at  the  idea  of  discretionary  powers ;  ivhen  in 
fact  a  government  never  did  exist  nor  never  can  exist  for  a  single 
year  without  such  power.  Such  a  government  would  be  a  political  phe- 
nomenon. Its  first  act  would  be  an  act  of  usurpation,  founded  upon  ne- 
cessity. An  entire  misconception  of  the  true  theory  of  political  freedom 
C 


V 


18         Defence  ofa  Liberal  Construction  of  the  Powers  of  Congress, 

seems  to  pervade  all  your  reasonings.  Frail,  indeed,  would  %e  the  tenure 
by  which  we  hold  that  great  national  blessing,  if  it  solely  depended  upon 
the  smaller  or  thelarger  portions  of  political  power,  committed  to  this  or 
that  class  of  political TUnctionaries.  I  have  already  shown,  that  our  true 
security,  was  to  be  found  in  the  constant  control,  which,  by  means  of  the 
elective  franchise,  we  can  exercise  over  our  political  agents.  All  the 
classes  and  departments  of  our  government  have  ample  powers  for  all  the 
purposes  of  despotism,  if  they  were  independent  of  the  people;  but  as 
long  as  their  constitutional  dependence  continues,  we  have  nothing  to 
fear.  If  they  abuse  their  discretion,  we  have  nothing  to  do  but  to  dis- 
card them  from  office. 

Having  thus  shown  the  true  principles  by  which  the  federal  consti- 
tution ought  to  be  construed,  I  shall  proceed  to  inquire,  what  are  the 
means  provided  to  apply  and  enforce  those  rules.  You  assert  that  when 
any  conflict  shall  occur  between  the  general  and  state  governments,  as 
to  the  extent  of  their  respective  powers,  <*EACH  PARTY  HAS  A 
RIGHT  TO  JUDGE  FOR  ITSELF!"  I  confess  I  am  at  a  loss  to 
know  how  such  a  proposition  ought  to  be  treated.  No  climax  of  po- 
litical HERESIES  CAN  BE  IMAGINED,  IN  WHICH  THIS  MIGHT  NOT 
FAIRLY  CLAIM  THE  MOST  PROMINENT  PLACE.  It  RESOLVES  THE  GO- 
VERNMENT, AT  ONCE,  INTO  THE  ELEMENTS  OF  PHYSICAL  FORCE  ',  AN» 
INTRODUCES    US     DIRECTLY     INTO    A    SCENE    OF    ANARCHY    AND    BLOOD. 

There  is  not  a  single  power  delegated  to  the  general  government,  which 
it  would  not  be  in  the  power  of  every  state  government  to  destroy,  un- 
der the  authority  of  this  licentious  principle.  It  would  be  only  neces- 
sary for  a  State  Legislature  to  pass  a  law  forbidding  that  which  the 
Federal  Legislature  enjoins,  or  enjoining  what  the  Federal  Legislature 
forbids,  and  the  work  is  accomplished.  Perhaps  you  would  require 
the  State  Judiciary  to  pronounce  the  State  Law  constitutional.  I  will 
illustrate  your  principle  by  a  few  examples. 

Suppose  Congress  should  pass  a  law  to  *May  and  collect  taxes,  duties, 
imposts,  and  excises,"  and  that  a  State  Legislature  should  pass  another, 
declaring  the  objects  for  which  the  revenue  was  intended,  unconstitu- 
tio7ial,  and  therefore  prohibiting  the  officers  of  the  general  govern- 
ment, by  severe  penalties,  from  collecting  the  "  taxes,  duties,  imposts, 
and  excises."  Suppose  Congress  should  pass  a  law  to  *' raise  an  army" 
for  a  national  war,  and  a  State  Legislature  pass  another,  declaring  the 
w^ar  *'  wicked,  unrighteous,  and  unconstitutional,'^  and  therefore  pro- 
hibiting the  officers  of  the  general  government,  under  heavy  penalties, 
from  recruiting  soldiers  within  the  limits  of  the  state.  Suppose  Con- 
gress should  pass  a  law  '^  for  the  punishment  of  counterfeiting  the  se- 
curities and  current  coin  of  the  United  States,"  and  a  State  Govern- 
ment should  pronounce  it  unconstitutional,  and  provide  heavy  penalties 
against  all  officers,  judicial  or  ministerial,  who  should  attempt  to  enforce 
it.  I  need  not  multiply  cases  ;  for  if  you  will  duly  consider  these,  you 
will  find  enough  to  satiate  your  keenest  relish  for  anarchy  and  disorder. 
In  all  the  above  cases,  you  would  say,  ^^  each  party  has  a  right  to 
judge  for  itself, ^^  and  of  course  to  enforce  its  judgment.  You  might, 
then,  behold  a  revenue  officer  of  the  United  States  confined  in  a  state 
dungeon  for  obeying  the  revenue  laws  of  Congress.     You  might  see  a 


PFritten  by  G,  M'Dnffie,  Esq,  July,  1821.  19 

gallant  officer  of  the  army,  covered  ivith  the  glorious  scars  of  many 
a  hard-fought  battle,  bearing  the  scourge  of  a  state  constable  at  a 
whippingpost,  for  attempting,  under  a  law  of  Congress,  to  recruit 
soldiers  to  fght  the  battles  of  his  country .   You  might  even  see  a  Fe- 
deral Judge  arraigned  before  a  State  Tribunal  for  pronouncing  sentence 
against  a  counterfeiter  of  the  current  coin  of  the  United  States  !  And  all 
this  would  unavoidably  result  in  giving  the  state  rulers  the  right  to  resist 
the  general  government,  or  in  a  civil  war  to  establish  its  legitimate  au- 
thority ;  consequences,  either  of  which  is  incompatible  with  the  very 
notion  of  government.    To  suppose  that  the  general  government  have 
a  constitutional  right  to  exercise  certain  powers,  ivhich  m^ust  operate"^ 
upon  the  people  of  the  states,  and  yet  that  the  government  of  each 
state  has  a  right  to  fix  and  determine  its  own  relative  powers,  and 
by  necessary  consequence,  to  limit  the  powers  of  the  general  govern- 
m,ent,is  to  suppose  the  existence  of  tivo  contradictory  and  inconsist- 
ent rights.    In  all  governments  there  must  be  some  one  supreme  power ; 
in  other  words,  every  question  that  can  arise  as  to  the  constitutional  ex- 
tent of  the  powers  of  different  classes  of  functionaries,  must  be  susceptible 
of  a  legal  and  peaceable  determination  by  some  tribunal  of  acknowledged 
authority,  or  force  must  be  the  inevitable   consequence.     And  where 
force  begins,  government  ends.     And  it  is  the  more  astonishing  that 
you  have  assumed  positions  involving  such  tremendous  consequences, 
when  we  consider  that  they  are  in  direct  opposition  to  the  '^strict  let- 
ter" of  the  constitution,  your  favourite  test  of  the  extent  of  delegated 
powers.     It  is  therein  provided,  *'that  the   constitution,  and  the  laws 
of  the  United  States  which  shall  be  made  in  pursuance  thereof, '^  "shall 
be  the  supreme  law  of  the  land  ;  and  the  Judges  in  every  state  shall 
be  bound  thereby,  cr/iy  thing  in  the  constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding.'^    And  again,  "the  Judicial  power 
[of  the  United  States]  shall  extend  to  all  cases,  in  law  and  equity,  aris- 
ing under  this  constitution,  the  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority.'^    Nothing  can  be 
more  plain,  than  that  the  ^'strict  letter^'  of  the  constitution  does  make 
the  laws  of  Congress  supreme,  enjoining  obedience  upon  the  state 
functionaries,   and  making  void  the  laws  of  a  state  if  contrary 
thereto.      And  to  give  this  provision  a  sanction  of  a  nature   peculiarly 
impressive,  *'the  members  of  the  several  state  legislatures,  all  execu- 
tive and  judicial  officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  oath  or  affirmation  to  support   the    consti- 
tution of  the  United  States."     It  is  not  less  evident  that  it  belongs  to 
the  national  judiciary  to  pronounce  upon  the  constitutionality  or  un- 
constitutionality of  the  laws  of  the  national  legislature.     Its  jurisdiction 
extends  to  "  all  cases"  arising  under  them ;  and  it  is  hard  to  conceive 
how  in  any  possible  case  a  federal  Judge  can  decide  a  case,  arising  un- 
der a  law,  without  pronouncing  upon  the  constitutionality  of  that  law. 
In  fact  it  would-be  vain  and  idle  to  make  the  laws  of  Congress  supreme, 
if  the  national  judiciary  had  not  the  power  of  enforcing  them.     For  you 
can  hardly  be  ignorant  that  a  law  is  a  dead  letter,   without  an  organ  to 
expound  and  an  instrument  to  enforce  it.     I  should  suppose,  therefore, 
that  no  professional  man  could  hesitate  in  saying,  that  a  forcible  oppo- 


V 


20         Defence  of  a  Liberal  Construction  of  the  Powers  of  Congress, 

sition  to  the  judgment  of  the  Federal  Court,  founded  upon  an  act  of 
Congress,  by  whatever  state  authority  that  opposition  might  be  author- 
ized, would  be  the  very  case  which  the  convention  had  in  view,  when 
they  made  provision,for  ''calling  forth  the  militia  to  execute  the  laws 
of  the  Union."  But  I  sincerely  hope  that  your  licentious  doctrines 
will  never  have  the  effect  of  misleading  the  state  authorities  so  far 
as  to  render  this  terrible  resort  unavoidable.  I  trust  the  farewell 
Address  of  Washington,  admonishing  his  fellow-citizens  to  ''frown 
indignantly"  upon  those  who  preach  up  doctrines  tending  to  disunion, 
is  not  yet  forgotten. 

But  you  seem  to  think  your  work  will  not  produce  the  intended  ef- 
fect, unless  you  can  render  the  judicial  department  odious  and  sus- 
pected. You  say,  *'  where  is  the  country  in  which  the  rights  of  man" 
have  always  been  protected  by  the  judiciary?  It  is  not  to  be  found. 
But  we  can  scarce  turn  our  eyes  to  the  history  of  any  nation,  in  which, 
on  the  contrary,  the  judicial  department  has  not  become  the  ''  agents 
of  corruption.^  ^  You  then  go  through  a  train  of  reasoning,  to  prove 
that  the  national  judiciary  are  in  "  perfect  habits  of  obedience  and  sub- 
ordination" to  the  legislative  and  executive  departments! 

I  cannot  exactly  determine  from  your  equivocal  denunciations, 
whether  you  wish  the  judicial  department  differently  organized,  or 
entirely  abolished.  As  to  its  organization,  it  is  such  as  the  will  of  the 
people  pleased  to  give  it,  and  upon  the  whole  I  think  the  best  it  could 
have  received.  Perhaps  it  would  have  suited  your  taste  better  if  the 
Governors  of  the  States  had  been  clothed  with  the  power  of  appointing 
the  Federal  Judges.  But,  accustomed  as  I  have  been  to  consider  an 
independent  Judiciary,  next  to  the  responsibility  of  public  agents,  as 
the  most  important  improvement  which  we  have  made  upon  the  politi- 
cal systems  of  antiquity,  I  cannot  suffer  you  to  denounce  the  judiciary 
as  being  the  "agents  of  corruption,"  without  giving  the  charge  a  se- 
rious refutation. 

Appealing  to  the  experience  of  nations,  we  shall  find  that  the  judicia- 
ry has  generally  been  justly  regarded  with  veneration,  as  the  upright 
and  inflexible  ministers  of  the  law.  The  very  education  of  a  Judge, 
accustomed  to  confine  his  views  to  the  results  of  a  stiff,  technical,  and 
artificial  system,  indisposes  him  to  that  course  of  flexible  and  unsteady 
reasoning,  by  which  usurpation  is  too  often  palliated.  On  this  subject 
the  experience  of  Great  Britain  may  be  more  profitably  consulted  than 
that  of  any  other  foreign  nation.  The  judiciary  of  that  country  is  the 
boast  and  glory  of  her  patriots  and  statesmen.  I  do  not  mean  to  say 
that  she  never  had  a  judicial  tyrant;  but  I  may  safely  assert,  that  where 
she  has  had  one  tyrant  on  the  bench,  she  has  had  ten  on  the  throne, 
and  thousands  in  Parliament.  The  "  Habeas  Corpus^*  act  would  not 
be  so  highly  prized,  but  for  the  independence  of  the  judiciary,  by 
whose  instrumentality  alone,  its  benefits  can  be  administered. — Where 
all  the  other  departments  are  tyrannical  and  corrupt,  it  cannot  be  expect- 
ed that  the  judiciary  will  be  always  perfect.  My  end  is  accomplished 
when  I  show  that  in  other  countries  it  is  better  than  the  other  depart- 
ments in  these  particulars. 

I  have  long  thought  that  the  brief  and  turbulent  course  of  freedom 


Written  by  G.  M'Duffie,  Esq,  July,  1821.  21 

in  the  republics  of  antiquity,  was  to  be  ascribed  principally  to  the  want 
of  an  independent  judiciary.  Those  violent  passions,  to  which  popular 
and  even  deliberative  assemblies  are  occasionally  subject,  do  not  reach 
them.  Elevated  above  the  scenes  of  ambition  and  political  intrigue, 
they  behold  with  calmness  the  storm's  impetuous  rage  ;  they  wave  the 
magic  wand  of  their  peaceful  power,  and  the  elemental  strife  is  heard 
no  more.  And  it  is  my  ardent  prayer  that  we  may  never  see  the  bloody 
day,  when  that  wand  shall  lose  its  power. 


APPENDIX.   A. 

CSee  page  16.  J 

It  is  thus,  in  the  second  number,  that  this  writer  illustrates  some  of 
the  implied  or  incidental  powers  under  the  Constitution : 

The  first  measure   which  you  touch  upon,  not  in  the  body  of  your 
essay,  but  in  your  notes,  by  which  you  certainly  intend  to  produce  your 
greatest  effect,  is  internal  improvement;  over  which  you  say,  Patrick 
Henry  never  supposed  the  general  government  would  usurp  any  power. 
There  is  no  incidental  power  more  clearly  given  by  the  Constitution, 
{and  even  you  admit  incidental  powers)  and  certainly  there  is  none 
at  once  more  harmless  and  salutary,  than  that  of  making  internal  im- 
provements. Congress  has  the  power  to  "declare  war,"  and  "  regulate 
commerce  between  the  several  states,"    If  there  is  any  such  thing  as 
an  incidental  power,  that  in  question  must  be  incidental  to  these  two 
grants.    The  power  to  declare  war  necessarily  involves  the  power  to 
make  war ;  and  the  power  to  make   war  necessarily  involves  the  right 
to  use  at  least  the  ordinary  means  of  making  that  war  efficient.     Now 
are  not  the  roads  and  canals  to  facilitate  the  transportation  of  troops 
and  all  the  apparatus  of  war,  means  indispensable  to  the  prosecution 
of  a  war?    If  it  should  become  necessary  to  march  troops  and  trans- 
port arms,  through  an  impassable  wilderness  in  a  state,  would  not  any 
General  be  authorized  to  cut  his  way,  and  make  the  marshes  and  swamps 
through  which  he  would  pass,  sufficiently  firm  to  convey  his  carriages 
and  troops?    And  would  he  not  have  a  right  to  appropriate  the  public 
money  for  this  purpose?    Most  surely.    And  yet  the  whole  legislative 
power  of  the  general  government  cannot  do  what  a  General  in  the  field, 
the  mere  creature  of  the  Executive,   could  certainly  accomplish,  and 
that  most  rightfully.     If  Congress  have  not  a  right  to  make  a  mili- 
tary  road,  they  have  no  7nght  to  march  men  through  a  state,  tvith- 
out  its  consent ;  for  the  one  is  as  much  a  violation  of  sovereignty  as 
the  other.     But  you  will  say  that  military  roads  are  not  indispensably 
necessary,  for  wars  might  be  conducted  without  them,  and  have  been. 
I  confess  I  was  surprised  to  see,  even  such  politicians  as  you  are,  fall 
into  an  argument  so  perfectly  puerile.    Do  you  not  see  that  it  would 
destroy  all  the  powers  of  the  general  government,  and  leave  it  disarmed 
and  at  the  mercy  of  a  foreign  foe?    Let  us  apply  your  argument.    It  is 
proposed  in  the  cabinet  to  use  cannon  and  cavalry,  and  Congress  are 


/ 


22  appendix. 

solicited  to  make  an  appropriation  for  the  purchase.  You  would  of 
course  say  no-^-Congress  has  no  power  to  make  the  appropriation,  for 
wars  have  been  conducted  without  cannon  or  cavalry ;  they  are,  there- 
fore, not  indispensably  necessary.  It  is  proposed  to  buy  muskets. 
You  say  no ;  wars  have  been  carried  on  by  bows  and  arrows,  and  mus- 
kets cannot,  consequently,  be  of  indispensable  necessity.  In  short,  the 
very  fact  that  there  are  more  ways  than  one  to  carry  on  war,  by  your 
mode  of  argument,  would  deprive  the  general  government  of  using 
either.  For  while  there  are  two  ways  of  doing  a  thing,  neither  of  them, 
according  to  your  refined  logic,  is  necessary,  and,  therefore,  neither 
can  be  used.  The  power  of  regulating  internal  commerce,  equally 
involves  the  power  to  make  roads  and  canals,  necessary  and  proper 
for  the  transportation  of  merchandise.  It  is  a  power,  too,  that  in 
the  nature  of  things  ought  to  belong  to  the  general  government ;  for  as 
it  extends  over  the  whole  of  our  national  territory,  it  is  the  only  power 
competent  to  make  improvements  that  will  pervade  the  whole  extent 
of  our  country.  Now,  I  ask  -you,  gentlemen,  in  the  name  of  common 
sense,  ivhere  is  the  danger  of  trusting  the  general  government,  elect- 
ed by,  and  frequently  responsible  to  the  whole  people,  with  the  pow- 
er of  making  a  road,  or  opening  a  canal  ;  a  power  that  exists  in  the 
little  local  corporation  of  almost  every  county  and  district  in  the 
United  States?  What  is  there  in  the  thing  itself,  that  is  calculated  to 
alarm  you?  Is  it  the  means  of  enslaving  the  country?  Is  there  any 
thing  in  making  a  road,  or  digging  a  canal,  that  is  calculated  to  rouse 
the  ambition  of  our  federal  rulers?  Making  a  road  is  not  in  itself  a 
very  captivating  work;  nor  can  I  very  well  see  what  ambitious  purpose 
the  general  government  could  answer,  merely  by  making  a  road.  Your 
objection,  it  would  seem  to  me,  ought  rather  to  be  against  the  use  of 
it  by  the  general  government,  after  it  is  made.  Now  every  body  will 
admit  that  good  roads  are  desirable  in  every  point  of  view.  For  a  sketch 
of  their  utility,  I  will  only  refer  to  the  masterly  speech  of  Mr.  Cal- 
houn on  that  subject,  delivered  shortly  before  he  left  Congress,  and 
his  able  report  on  that  subject  since  he  has  been  Secretary  of  War.  Then 
if  roads  are  desirable,  and  ought  to  be  used  by  the  general  government, 
if  they  had  an  existence,  your  objection  resolves  itself  entirely  into 
this!  "That  Congress  ought  not  to  make  the  roads."  How  the  states 
can  be  injured,  by  improvements  made  by  the  general  government,  I 
cannot  perceive.  The  power  to  make  a  road  is  not  a  distinct,  substan- 
tive political  power  at  all.  It  is  simply  and  essentially  a  means,  as 
much  so  as  the  power  to  manufacture  a  musket,  and  is  certainly  not 
more  dangerous. 


PAMPHLET  BINDER 

Syracuse,  N.  Y. 
Stockton,  Calif. 


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